Australia’s family court system is in crisis – it’s time we considered adopting a system used in New Zealand, which could be the answer, writes Jennifer Hetherington.
Recent reports of more than 300 pending matters in a backlog at Brisbane with only two judges trying to work through the logjam highlighted the critical need for an urgent overhaul of our family law system.
There is reluctance on behalf of the government to free up more money for wider Family Court matters.
A Federal Circuit Court judge from Brisbane is being sent to Rockhampton to help them, but this also strips Brisbane when we need more judges.
The Family Law Act has turned 40 but, as far as funding goes, we’re not getting any cake. The whole system needs an overhaul.
What we need is one court to fix family court matters and also domestic violence matters because quite often they are interlinked. At present our family law system is stretched across various State and Federal laws and needs an urgent overhaul to fast-track cases and especially domestic violence protection orders.
Domestic violence victims here have to navigate different courts and state and Federal law for family law matters, such as seeking urgent protection orders. The system is ponderous and badly fails several victims.
In fact many of the Family Court matters awaiting trial involve serious claims of family violence, sexual assault and even child abduction. The backlog means many are waiting up to two years to go to trial in Brisbane, and then often waiting months to receive a judgment. The judges are not to blame. They work long hours and do a great job, but there are simply not enough resources.
A system used in New Zealand channels all domestic violence protection orders (domestic violence orders) through the Family Court, which has a unique and effective online option for urgent intervention.
In Australia, domestic violence victims have to go through different courts to seek a protection order or other matters such as custody of children. Protection orders issued in NSW have to be re-registered in Queensland.
We have state laws over-riding Commonwealth laws and it gets complicated and unwieldy. In New Zealand they use a unified Family Court to decide everything, which is faster and more cost-efficient.
They also have a unique online service for people at risk who can apply urgently to the one Family Court for protection and parenting orders instead of different courts. A judge can consider the applications via an online system within minutes and make an interim decision. In Australia, just getting an application for parenting orders before a judge can take weeks.
The NZ system has safeguards built into it, but even an overhaul of Queensland domestic violence laws does not go far enough to protect at-risk victims.
A benefit of the NZ system is that a judge can assess dozens of urgent protection orders and parenting order applications in a day and make a decision on each.
There’s no way we can do that here with our system, where each parenting application has to go through the formal court process, which in some cases can take weeks to organise.
Domestic violence order applications in Queensland take less time but are in a different court, and a person in need of protection still needs to go to court to obtain the order – sometimes they are in really urgent need and time is critical. The only exception to this is if the police are making the application.
Also, there’s a major cost benefit to victims by an efficient online method as it saves not only time but cuts costs too. It’s all about the simplicity of having one family court and one judge to consider all matters. We need to make our family law system less complicated.
Decisions on custody and parenting here are determined by Federal law, while domestic violence and child protection fall under state law.
Here we have different courts dealing with various aspects of family law issues. New Zealand has a system of one court for all family law matters and it means there’s also less chance of child protection issues falling between the cracks of the laws.
We need to be open-minded to other systems that could work in Australia. Adopting the New Zealand system here would require the states to surrender some of their powers to the federal government so that unified laws could be made to protect domestic violence victims and children throughout Australia.
Jennifer Hetherington is an accredited family law specialist and principal of Brisbane firm Hetherington Legal